Can I Reproduce Images From Crystal Bridges Museum?

Dear Rich: I live near Crystal Bridges, America's newest art museum. Crystal Bridges is the brain child of Wal-Mart Heiress, Alice Walton and is a billion dollar museum. We here in Northwest Arkansas are so excited to have access, free access in fact, since the museum has been given an endowment by Wal-Mart that will allow the non profit museum to be forever free to the public, to see great American art from colonial times to the present. Many of these artworks are early works (pre 1923) and are part of the public domain. I have a new website I’m developing for public domain images. Crystal Bridges allows photographs to be taken of the art as long as a tripod or flash is not used. However, their photography policy states that photos of the art are only to be used for personal use. I take this to mean that they can not be used on my site which shares images with the whole wide web world. Am I correct in my assumption that they don’t have the right to restrict the use of my photographs of their public domain artworks? I am not trying to claim copyright of the photographs, since they will be merely reproductions of public domain works. Whether you can reproduce imagery that's in the public domain really depends on one thing: Did you enter into an agreement with the museum not to reproduce the images? You're probably thinking, "I didn't enter into any agreements with Crystal Bridges." But obtaining an admission ticket, if the ticket contains certain terms and conditions, may qualify as the type of agreement we're talking about. This may seem incredibly creepy -- to condition admission into the museum based on your promise not to reproduce public domain imagery -- but it's not uncommon in the copyright world and these so-called licenses are generally enforceable. Here's what public domain expert Steve Fishman has to say about the practice in his excellent public domain guide.

Many copyright experts believe that licenses imposing copyright-like restriction on how the public may use public domain materials should be legally unenforceable. This is because the federal copyright law preempts (overrides) state contract law and prevents people from using contracts to create their own private copyrights. Moreover, there are sound policy reasons for holding such license restrictions unenforceable—their widespread use diminishes the public’s access to the public domain. However, almost all courts have ignored the experts and enforced these licenses. 

What's a valid license? To have a valid license, you and the museum must assent to the terms and conditions, typically at the time when you enter. If the admission ticket contains no restrictive provisions and you never assented knowingly to such conditions, there probably is no license in place. For example, it's unlikely that an after-the-fact assertion of rights -- a sign on the way out of the museum that tells you that you cannot reproduce the imagery --  is legally enforceable as a contractual license.
What about the Crystal Bridges website? Each page of images at the Crystal Bridges website contains the statement:

Works of art in Crystal Bridges' collection are protected by copyright and may not be used without permission. For more information visit Rights and Reproductions. 

That sounds foreboding but we're not sure that statement creates a binding license. It reminds us more of a tip jar, left in view in the hopes that its presence will trigger a hoped-for result. The museum would have a much stronger argument that its terms and conditions are binding if the user had to assent to these terms and conditions -- that is, click a "Yes, I Agree" button to access the works. The fact that the site includes "copyrighted" photographs of public domain artworks also doesn't affect your ability to copy and reproduce that artwork. Courts have held that "slavish copying" of public domain works does not make the photographs protectible under copyright law. Although we're not a betting blog, if we had to bet, we'd place our money on the fact that currently public domain images at the site can be copied and reproduced without permission.
One last thing. Just because a painting was created before 1923 doesn't mean it's in the public domain. It must have been published before 1923. You may be surprised to learn that displaying a painting in a museum, for example, does not amount to publication. Publication (scroll down) refers to reproduction of the image, for example in a magazine, post card, or book.  To learn more about these tricky public domain rules, check out Fishman's tome.
One other last thing. We're not encouraging you to get chased by the museum and we appreciate the fact that great art is being made available to the masses at no charge. But is it really free? The driving force behind these efforts to restrict reproduction is a desire to jack up gift shop sales and generate licensing revenue. We hope the museum rethinks its desire to reclaim and restrict rights to artwork that our government has designated to be freely available to the public.